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U.S. v. PENA

United States District Court, Western District of New York

May 16, 2003


The opinion of the court was delivered by: William M. Skretny, United States District Judge



Currently before this Court is Defendant's Motion for Resentencing, filed on January 22, 2003.*fn1 Defendant's motion comes as a result of the Bureau of Prison's ("BOP") discontinuation of its policy of honoring judicial sentencing recommendations that eligible defendants be placed into community confinement settings to serve the imprisonment portions of their sentences. As of December 20, 2002, the BOP no longer adheres to such placement recommendations. Despite the unanticipated and abrupt nature of the BOP's change in policy, this Court finds that there is no basis upon which to grant Defendant relief. Accordingly, Defendant's motion is denied.


Defendant pled guilty to a single count of attempting to defraud the United States in violation of 18 U.S.C. § 371, on January 30, 2002. On June 18, 2002, this Court sentenced Defendant, inter alia, to 4-months imprisonment and, as it had done in numerous cases for more than a decade prior, recommended to the BOP that Defendant serve his term of imprisonment at the community confinement facility closest to his residence.*fn2 This Court included this recommendation for the specific purposes of allowing Defendant to maintain his employment, to make restitution to the government, and to continue to support his family.

On September 24, 2002, at Defendant's request, this Court stayed his facility designation until December 1, 2002, to allow him to complete the manager trainee program that his employer, Darden Restaurants, required of its employees. (Buth Aff., ¶ 7.) During this time, Defendant continued to comply with the conditions of his pre-sentence release. (Buth Aff., ¶ 8.)

On January 13, 2003, Defendant received a letter from the BOP directing him to report to the Loretto Satellite Camp in Loretto, Pennsylvania. (Buth Aff., ¶ 10.) Loretto is a minimum security camp located approximately three hours from Defendant's residence in Pennsylvania. (Buth Aff., ¶ 10.) Concerned that he had not been designated to a community confinement facility as expected, Defendant contacted his lawyer, who was advised by the BOP that Defendant's designation came as a result of the BOP's policy change. (Buth Aff., ¶ 11.)


On December 20, 2002, in a memorandum to federal judges, the Director of the BOP announced a significant change in BOP policy: Effective December 20, 2002, the BOP discontinued its long-standing policy of honoring judicial sentencing recommendations that eligible defendants be placed into community confinement facilities for service of the imprisonment portions of their sentences. The BOP's policy change is predicated on the United States Department of Justice, Office of Legal Counsel's legal determination that community confinement is not synonymous with imprisonment, and that substituting traditional imprisonment with community confinement contravenes established caselaw and is inconsistent with the United States Sentencing Guidelines.*fn3 (See Memorandum Opinion for the Deputy Attorney General, Defendant's Memorandum of Law, Ex. B.) Thus, the Department of Justice determined that the BOP has no discretion to permit an inmate sentenced to a term of imprisonment to serve the sentence in a community confinement setting.

In Defendant's initial motion papers, he argued that the shift in the BOP's policy rendered his sentence illegal, and that therefore this Court should correct his sentence under the provisions of Rule 35 of the Federal Rules of Criminal Procedure. However, at oral argument, Defendant's counsel conceded that Rule 35 does not offer a viable avenue for relief.*fn4 Rather, by her legal memorandum and oral argument, Defendant's counsel now requests that this Court issue an order of mandamus compelling the BOP to adhere to its previous practice of honoring judicial recommendations and to place Defendant in a community confinement facility. Defendant argues that the retroactive application of the BOP's new policy to him violates his Due Process rights and the Ex Post Facto clause. For the following reasons, this Court is unpersuaded.

The BOP is vested with the exclusive statutory authority to designate prisoners' places of imprisonment. See 18 U.S.C. § 3621(b); United States v. James, 244 F. Supp.2d 817, 819 (E.D.Mich. 2003) ("It is well established that Congress has given the [BOP], and not the federal courts, the exclusive authority to decide where federal prisoners will serve terms of imprisonment."). While it is true that federal sentencing courts have long made placement recommendations to the BOP, these recommendations have never been more than that — recommendations. The Second Circuit has recognized the advisory nature of such recommendations, and has stated that "[w]hile BOP may consider the recommendation of the sentencing judge in determining the place of a confinement, the district judge's views are not controlling." United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). The BOP's routine adherence to these recommendations did not act to elevate the recommendations to the level of a judicial order or directive. At all times, the BOP was free to disregard any judicial placement recommendation with which it disagreed.

As such, even prior to the BOP's recent policy change, all federal defendants assumed the risk that the BOP would decline to follow the sentencing court's recommendation. Defendant here is no different. Despite his protestations that he relied on the BOP's past practice and the probability that the BOP would follow this Court's community confinement recommendation, Defendant concedes that he did not have a right to such placement, and that he knew that this Court's role in the designation decision was limited to perhaps making a community confinement recommendation. It is within this context that this Court now turns to Defendant's arguments and request for relief.

First, Defendant contends that his Due Process right to be sentenced based on accurate information was violated because this Court sentenced him based on misinformation, i.e., this Court's understanding that the BOP could follow its recommendation. It is well settled that the Due Process Clause protects a defendant from being sentenced based on inaccurate or false information. See United States v. Addonizio, 442 U.S. 178, 187, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979). However, in this instance, the premise of Defendant's argument is fatally flawed because there was no false or misleading information presented or considered at the time Defendant was sentenced. See United States v. Andrews, 240 F. Supp.2d 636, 638 (E.D.Mich. 2003) ("the fact that the B.O.P. no longer treats `community confinement' as synonymous with `imprisonment' is not materially false information").

At the time this Court sentenced Defendant, it was fully aware that its recommendation was not binding on the BOP, as were all of the parties involved. Moreover, this Court was fully aware that the BOP had the discretion to decline to follow its placement recommendation if it so chose. This Court was therefore not operating under any sort of misunderstanding, and thus there was no Due Process violation. See United States v. Herron, No. 03-3039-JAR, 02-40056-001-JAR, 2003 WL 272170, at *1 (D.Kan. Feb. 3, 2002) ("[w]hen the BOP does not follow the recommendations of a sentencing Court, the result does not render the sentence invalid because of material misinformation"); United States v. Kramer, No. 02 CR 47, 2003 WL 1964489, at *3-4 (N.D.Ill. Apr. 28, 2003) (rejecting Due Process argument); Andrews, 240 F. Supp.2d at 638 (similar).

Second, Defendant contends that application of the BOP's policy to him violates the Ex Post Facto Clause. "To fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it, by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441, 117 S.Ct. 891, 896, 137 L.Ed.2d 63 (1997) (internal citations and quotations omitted). Because Defendant in this case was designated after the change in the BOP's policy, there is some doubt as to whether the Ex Post Facto clause even applies. However, assuming that it does, there is no violation.

The change in the BOP's policy comes on the Department of Justice's determination that the BOP had been misinterpreting its placement authority under the law. No law or regulation has been changed, but rather, the BOP has corrected what it perceived to be its erroneous interpretation of the law. In Caballery v. United States Parole Comm'n., 673 F.2d 43 (2d Cir.), cert. denied, 457 U.S. 1136 (1982), the Second Circuit stated that an individual does not have a vested right in an erroneous statutory interpretation. Id. at 47 (examining a case in which the U.S. Parole Commission had changed a practice that was based on a misinterpretation of law). Thus, there is no violation here where the BOP has changed its placement policy to conform to its corrected interpretation of the law. See United States v. Gilbride, No. 3:00CR0320, 2003 WL 297563, *2 (M.D.Pa. Jan. 31, 2003) (citing Caballery in rejecting a defendant's challenge to the BOP's new policy under the Ex Post Facto Clause).

Moreover, the BOP's change in policy does not retroactively increase Defendant's punishment or the length of his sentence; it simply affects the conditions under which he will be confined. See Kramer, 2003 WL 1964489, at *5. Further, Defendant entered into his plea agreement with full knowledge that (1) this Court was under no obligation to make a recommendation of community confinement, and (2) that even in the event that such a recommendation was made, the BOP was under no obligation to follow it. As such, for the reasons stated above, this Court finds that there is no Ex Post Facto violation. But see United States v. Serpa, No. CRIM.A.02-10118-WGY, 2003 WL 1216656 (D.Mass. Mar. 12, 2003) (finding that application of the BOP's new policy violates the Ex Post Facto Clause); Ashkenazi v. Attorney Gen. of the United States, 246 F. Supp.2d 1, 7 (D.D.C. 2003) (finding a substantial likelihood that the retroactive application of the new BOP policy violates the Ex Post Facto Clause).

Third, as a form of relief, Defendant urges this Court to issue an order of mandamus pursuant to 28 U.S.C. § 1361 compelling the BOP "to use its discretion in a legal manner as was its policy prior to December 16, 2002, and designate Mr. Pena to a community confinement center for the minimum portion of his term of imprisonment (120) days." (See Defendant's memorandum of law, at 13.) Mandamus, however, is particularly inapplicable. A district court's jurisdiction to issue orders of mandamus is limited to actions seeking to "compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. The party seeking mandamus relief must demonstrate that it has a "clear and indisputable right" to the relief requested. In Re Int'l Bus. Mach. Corp., 45 F.3d 641, 643 (2d Cir. 1995). As discussed above, the BOP has no duty to adhere to this Court's placement recommendation nor does Defendant have a "clear and indisputable right" to community confinement placement, and he concedes as much.

Finally, Defendant argues that the BOP should be estopped from applying its new policy in his case because it failed to timely designate him to a facility. The facts, however, belie this argument. This Court sentenced Defendant on June 18, 2002. Defendant complains that the BOP failed to designate him to a facility between June 18 and September 24, 2002. However, Defendant failed to present himself to the U.S. Marshals Office for processing, either here or in Oklahoma. (See Wylegala Aff., ¶ 10.) Moreover, he moved from Oklahoma to Pennsylvania without notifying either the probation office or the Marshals Service. (See Wylegala Aff., ¶¶ 9, 22.) Defendant then moved for a stay of his designation until December 1, 2002, which this Court granted. Defendant was designated to a facility five weeks after the stay expired. Based on these facts, this Court finds no merit in Defendant's argument that the BOP should be equitably estopped from applying its new policy to him.


This Court acknowledges that Defendant's placement in a community confinement facility would be the best and most appropriate result in this case. Defendant has expended a considerable amount of time and energy obtaining and maintaining his employment, supporting his family, and caring for his elderly father. Circumstances being what they are, it is indeed unfortunate that this Court's intention that Defendant serve the imprisonment portion of his sentence in a halfway house or similar facility may not come to fruition. It is unfortunate, but neither unlawful nor unconstitutional. Accordingly, Defendant's Motion for Resentencing is denied.


IT HEREBY IS ORDERED, that Defendant's Motion for Resentencing (Docket No. 61) is DENIED.

FURTHER, that Defendant shall voluntarily surrender as directed by the United States Marshals Office on Wednesday, May 21, 2003.


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